Johnson v. Straight's, Inc.

• Decision Date: 13 February 1980
• Docket Number: Nos. 12543,12667,s. 12543
• Citation: 288 N.W.2d 325
• Parties: Orville JOHNSON, Plaintiff and Respondent, and Harvey Johnson, Plaintiff and Cross-Appellant, v. STRAIGHT'S, INC., a corporation, and Reuben Heckenlaible, Defendants, Appellants and Cross-Respondents. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 325

288 N.W.2d 325

Orville JOHNSON, Plaintiff and Respondent and Harvey Johnson, Plaintiff and Cross-Appellant, v. STRAIGHT'S, INC., a corporation, and Reuben Heckenlaible Defendants, Appellants and Cross-Respondents.

Nos. 12543, 12667.

Supreme Court of South Dakota.

Considered on Briefs.

Decided Feb. 13, 1980.

Ronald J. Wheeler of Churchill, Manolis, Wheeler & Freeman, Huron, for plaintiff and respondent and plaintiff and cross-appellant.

Harold H. Deering, Jr. of May, Adam, Gerdes & Thompson, Pierre, for defendants, appellants and cross-respondents.

WOLLMAN, Chief Justice.

This is an action to recover for damages arising from a fire allegedly caused by the negligence of the appellants Straight's, Inc., and Reuben Heckenlaible. Plaintiffs below, Orville and Harvey Johnson, are father and son. In appeal # 12543, Orville, the father, is respondent. In appeal # 12667, Harvey, the son, is cross-appellant. We affirm the judgment rendered in favor of Orville Johnson and against the appellants Straight's Inc., and Heckenlaible. We dismiss Harvey Johnson's attempted cross-appeal.

Respondent Orville Johnson owned a farm house located south of Highmore in which he and his wife lived until August of 1975, when they moved to Highmore. Harvey Johnson and his wife lived in the house following their marriage in November of 1975. On the morning of September 23, 1976, they moved some furniture from the farm house to their new mobile home in Highmore, which had been delivered late the preceding afternoon.

Earlier during the week of September 23, Orville Johnson had asked Heckenlaible, an employee of Straight's, Inc., a Highmore firm engaged in the business of selling bulk gas, fuel, and propane and installing and maintaining furnaces, to service and light the propane gas floor furnace in the farm house.

On the morning of September 23, Heckenlaible went to Harvey Johnson's mobile home to repair a propane gas line that had been damaged. Heckenlaible told Harvey Johnson that he was going out to the farm house that afternoon to check the furnace. Harvey Johnson said nothing with respect to any obstruction over the furnace grate.

Early that afternoon, Heckenlaible went to the farm home, where he cleaned the pilot light on the furnace, lit the burners to make sure that they burned properly, and went upstairs to check the thermostat. Satisfied that the thermostat and furnace worked properly, he set the thermostat and left the house. Later that day the house was damaged by a fire that resulted when a rug that partially covered the furnace grate was ignited by the buildup of heat in the grate. The rug had been placed over the grate by Mrs. Harvey Johnson sometime that summer while the Johnsons were rearranging furniture to accommodate a newly acquired window air conditioner.

The floor furnace was suspended immediately beneath the floor grate, with the burners some two and one-half feet from the top of the grate. In a furnace of this type there are no other grates or ductwork to conduct the heat from the burners.

The thermostat that controlled the furnace was some eight to twelve inches from an archway leading into the living room, through which the rug was readily visible. Mr. Heckenlaible made no attempt to look around the corner to check the furnace grate when he checked the thermostat. He has been in the business of servicing and installing furnaces of the type involved here for some twenty years and had installed the furnace in question. He was aware that there is a substantial amount of heat generated by a furnace of this type. He testified that he sometimes checks floor furnace grates, depending "upon the housekeeping they (the homeowners) do."

Harvey Johnson acknowledged at trial that he knew that the rug was over the grate. He denied, however, that there had been a conversation between Heckenlaible and himself on the morning of the fire.

Appellants argue on appeal that: (1) They owed no duty to respondent to check the furnace grate and therefore were not negligent in failing to do so; (2) Even if they did breach a duty owed to respondent, such breach was not the proximate cause of respondent's damage due to the intervening neglect of Harvey Johnson in covering the furnace grate.

I. Appeal # 12543

Appellants cite the reasonable man doctrine, as expressed in such cases as Rikansrud v. City of Canton, 79 S.D. 592, 116 N.W.2d 234 (1962), to the effect that the care an actor is required to exercise is that which a reasonable person should recognize is necessary to prevent his acts from creating an unreasonable risk of harm to another. The three elements necessary to support a finding of actionable negligence are a duty on the part of the defendant, a failure to perform that duty, and an injury to the plaintiff resulting from such failure. Cuppy v. Bunch, 88 S.D. 22, 214 N.W.2d 786 (1974). Foreseeability is the touchstone of the determination of the existence of a duty. Rikansrud v. City of Canton, supra.

In Waggoner v. Midwestern Development, Inc., 83 S.D. 57, 62, 154 N.W.2d 803, 806 (1967), we stated: "One cannot be said in any manner to neglect or refuse to perform a duty unless he has knowledge or be reasonably chargeable with knowledge that an act or omission involves peril...